Legislature using this tactic to end-run Constitution CLARK
The law should be clear. An ordinary citizen should be able to consult Idaho Code and, with a bit of diligence, figure out whether something they want to do is legal.
But an emerging legislative strategy on the right in Idaho is to make laws murky, vague and hard to understand. It allows lawmakers to side-step the Constitution and enforce forms of social control by using the fear that you might break the law — because nobody knows what the law is.
Starting in July, libraries can get sued if they make certain books available to children. Which books? Nobody knows.
Counselors can face five years in prison for so-called “abortion trafficking” if they communicate certain information about abortion to minors in certain contexts. What can they say and in what conditions? Nobody knows.
It would be tempting to chalk this up to simple incompetence, to the fact Idaho’s citizen Legislature isn’t all that skilled at crafting bills. But two recent events suggest something else is at work, that a kind of strategic ambiguity is being used to circumvent constitutional and legal restraints on government power, letting the state use the threat of severe consequences coupled with vague legal standards to end a wide variety of constitutionally protected conduct.
As Idaho Reports noted last week, a library in Preston cut off public access to all books last week until at least June as it tries to figure out what books it can legally offer to children and what books could get it sued.
And on Tuesday morning, the state of Idaho and abortion providers duked it out before the 9th Circuit over whether or not the abortion trafficking law, which makes it a crime to help a minor obtain a legal abortion out of state without informing their parents, violates the First Amendment.
The common thread in both cases: Strategic ambiguity allows the government to have it both ways.
It allows the threat of prosecution to bring aid for out-of-state abortion care to a halt — as the plaintiffs suing the state did after the abortion trafficking bill was signed — and it allows the state to argue in court that those same providers shouldn’t be allowed to sue because the services aren’t doing anything illegal — as Deputy Solicitor Josh Turner asserted in court Tuesday.
It means small, rural libraries are scrambling to remove books with LGBTQ+ characters from their shelves because they’re afraid keeping them could get them sued into nonexistence. But when libraries sue the state, you can bet someone like Turner will argue in court, “Oh, all those books were fine. No idea why you removed them.”
If a group puts up a billboard saying it will give girls seeking abortions reliable information and keep it confidential, that’s not illegal, Turner told the judges. But if they communicate that abortions are legal in the confines of a counseling room, maybe that is illegal, depending on other details.
By the end of oral arguments and extended questioning of the state by two judges, no ordinary person would have a clue what the state of Idaho believes is protected speech and what could land you five years in prison. You’d have to break the law to find out what it is.
But of course, people don’t want to go to prison, so the natural effect is that a lot of what the state acknowledges is protected speech will stop because people are afraid.
This is precisely the same thing that happened with the library in Preston. The language of the
House Bill 710 says simply that “any act of … homosexuality” counts as sexual activity in the same way that masturbation and sexual intercourse do.
So will a book with a Pg-rated romance between a boy and a girl violate the terms of the law? Almost certainly not. What if it’s between two boys? Now you’re on that shaky maybe-maybe-not territory where it’s safer not to risk it.
And so the effects are predictable.
“Library director Laura Wheatley told Idaho Reports on Friday evening there are ‘a fair amount of books in the young adult section’ with LGBTQ+ themes or characters which need moved to the adult section because the law includes acts of homosexuality in its definition of sexual content harmful to minors,” the blog reported.
The book bans are working without explicitly banning books, just like the abortion counseling
ban is working without explicitly banning abortion counseling.
The courts must strike back at this deployment of vagueness as a legal weapon. It’s a system that’s bad for everyone, except maybe lawyers. With everyone afraid and suing one another, they’re the ones who get paid to resolve all this ambiguity in the courts.
And in the meantime, lots of Idahoans are too afraid to exercise the First Amendment rights guaranteed by the Constitution.